5200 Keystone Ltd. Realty, LLC v. Filmcraft Laboratories, Inc.

30 N.E.3d 5, 2015 Ind. App. LEXIS 328, 2015 WL 1730413
CourtIndiana Court of Appeals
DecidedApril 14, 2015
DocketNo. 49A02-1403-CT-188
StatusPublished
Cited by4 cases

This text of 30 N.E.3d 5 (5200 Keystone Ltd. Realty, LLC v. Filmcraft Laboratories, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
5200 Keystone Ltd. Realty, LLC v. Filmcraft Laboratories, Inc., 30 N.E.3d 5, 2015 Ind. App. LEXIS 328, 2015 WL 1730413 (Ind. Ct. App. 2015).

Opinion

FRIEDLANDER, Judge.

[1] This litigation involves a dispute over responsibility for the costs of environmental cleanup of commercial real estate (the Site) located near the corner of 52nd St. and Keystone Avenue in Indianapolis. 5200 Keystone Limited Realty, LLC (KLR) acquired the subject property from Apex Mortgage Corporation (Apex) after Apex had acquired the property through foreclosure proceedings against Eric Spicklemire, who purchased the property in 1981. Apex filed its complaint against Filmcraft Laboratories, Inc. (Filmcraft), a company owned by Spicklemire. The complaint alleged causes of action under these three statutes: 1) Ind.Code Ann. § 13 — 11— 2-70.3 (West, Westlaw current with legislation of the 2015 First Regular Session of the 119th General Assembly effective through March 24, 2015) (creating an “environmental legal action” (ELA), which is a legal action “brought to recover reasonable costs associated with removal or remedial action involving a hazardous substance or petroleum released into the surface or subsurface soil or groundwater that poses a risk to human health and the environment”); 2) Ind.Code Ann. § 13-30-3-l'3(d) (West, Westlaw current with legislation of the 2015 First Regular Session of the 119th General Assembly effective through March 24, 2015) (creating an action to recover reasonable expenses and attorney fees incurred by a landowner on whose land solid waste has been illegally dumped); and 3) Ind.Code Ann. § 6-1.1-22-13 (West, Westlaw current with legisla[7]*7tion of the 2015 First Regular Session of the 119th General Assembly effective through March 24, 2015) (liability for back property taxes). KLR was substituted as plaintiff after it purchased the Site from Apex. Shortly thereafter, KLR amended its complaint, adding as defendants Spick-lemire, Portrait America, Inc., A.C. De-maree, Inc., Russ Dellen, Inc. (RDI), Clean Car, Inc., and The Wax Museum & Auto Sales. KLR appeals the grant of Spicklemire’s motion to dismiss with respect to KLR’s statutory causes of action, and a grant of summary judgment with respect to certain common-law claims presented by KLR at trial. KLR presents the following consolidated, restated issues for review:

1. Did the trial court err in excluding expert testimony regarding whether the Wax Museum & Auto Sales and Clean Car caused or contributed to the contamination at the Site?
2. Did the trial court err in entering summary judgment against KLR on its common-law claims?
3. Did the trial court err in dismissing KLR’s complaint pursuant to Trial Rule 41(B) on grounds that KLR failed to present sufficient evidence to show Spicklemire caused or contributed to chlorinated solvent and petroleum hydrocarbon contamination of the Site?

[2] We affirm.

[3] In order to understand the issues involved in this case, we must first set out in detail the history of the ownership and activity on the Site. A.C. Demaree Inc. (Demaree) owned and operated a commercial dry cleaning business on the Site from at least 1948 to 1973. It is undisputed that during this time, dry cleaners used two solvents to clean textiles: perehloroethy-lene, a chlorinated solvent, and Stoddard solvent, a petroleum hydrocarbon. De-maree stored these solvents in tanks at the Site.

[4] In 1973, Demaree sold the Site to Robert Dellen, who in turn conveyed the Site in 1979 to Dellen Realty, Inc. (Dellen Realty), a predecessor of RDI. From 1974 to 1981, Filmcraft leased the Site from Dellen and Dellen Realty. In January 1981, Spicklemire and his father purchased the Site from Dellen Realty, and from 1981 to 2000, Spicklemire leased the site to Filmcraft. Spicklemire was a shareholder, officer, and employee of Filmcraft, and became the company’s president in 1994, when he became sole owner of Filmcraft and the Site. He remained in this position until the company ceased operation. Portrait America, also a Spicklemire-owned entity, leased the Site from 2000 to 2001. During its years of operation, Filmcraft sublet the back of the Site to several auto-detailing operations. These included Clean Car, Inc. and The Wax Museum & Auto Sales (collectively, the Detailers).

[5] During the time its business was located on the Site, i.e., 1974 to 2000 or 2001, Filmcraft operated a commercial photo-processing operation. This process was accomplished by the use of machines, which ran approximately eight to twelve hours per day. These machines processed film and printed images on paper. The processing generally involved the feeding of paper through a machine that sent the film or paper through a series of chemical baths and water-wash tanks. The chemicals used in this process included bleaches, fixers, and stabilizers manufactured by Kodak and other suppliers. Such chemicals were highly diluted by water. None of these chemicals contained chlorinated solvents. Filmcraft documents indicate that the only petroleum hydrocarbon used in Filmcraft’s operation were white grease and photographic lacquer. White grease was used to lubricate a single piece of [8]*8equipment, and a single, three- to four-inch tube lasted the entire time that Film-craft was in operation on the Site.

[6] During his ownership of the Site, Demaree had installed trench drains throughout the Site that connected to the sewer. Later, photo-processing chemicals spent in Filmcraft’s operations were discharged from its machines through a silver recovery device in the form of an effluent and, per manufacturer recommendations and standard industry practice, discharged into the trenches Demaree had installed. This effluent contained minute amounts of silver but did not contain chlorinated solvents or petroleum hydrocarbons. Subsequent testing indicated the presence of silver in a sediment sample collected from inside the trench where photo-processing effluent was discharged. No silver above regulatory action levels, however, was found in the soil and groundwater samples taken at the Site in 2013. On occasion, paper from the paper processor would clog the drain and form a sludge. This sludge did not contain chlorinated solvents or petroleum hydrocarbons. In 2013, the sewer lines were scoped by Gurney Bush, Inc. (GBI) with a video camera, which revealed certain offset joints in the sewer line, but no leaks were found.1 Also, GBI’s investigation confirmed that the sewer on the Site was usable and that water sent down the pipes went into the city’s main sewer line. '

[7] Filmcraft used small cans of aerosol lacquer that were approximately the size of a can of spray paint. Each can would last approximately one month, and the aerosol lacquer was applied directly to photographs in a ventilated area on the Site. Any overspray ended up on a peg board that was used to hold the photographs or was vented out of the building through an exhaust fan. The testing indicated that no lacquer was released to the soil or groundwater at the Site.

[8] As indicated, the rear part of the Site was sublet to various auto-detail companies during Filmcraft’s operation. The rear of the Site was separated from Film-craft’s operation by a wall and a windowless door. The Detailers had their own main entrance to the Site on the outside of the building.

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30 N.E.3d 5, 2015 Ind. App. LEXIS 328, 2015 WL 1730413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/5200-keystone-ltd-realty-llc-v-filmcraft-laboratories-inc-indctapp-2015.